Thomas Stewart v. TDCJ

NO. 07-11-0410-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 2, 2013
_____________________________
THOMAS GILMORE STEWART,
Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.,
Appellees
_____________________________
FROM THE 278TH DISTRICT COURT OF WALKER COUNTY;
NO. 23,807; HONORABLE KENNETH H. KEELING, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Thomas Gilmore Stewart, an indigent inmate, appeals the dismissal of
his lawsuit against the Texas Department of Criminal Justice (TDCJ) and various
wardens of the prison in which he was incarcerated. Through the suit, he sought relief
for injuries sustained upon slipping in a shower stall and for the conversion of his legal
papers. The claims were initiated under the Texas Tort Claims Act and 42 U.S.C. §
1983. The State moved to dismiss under Chapter 14 of the Texas Civil Practice and
Remedies Code. The motion was granted, and Stewart appealed.
Chapter 14
The claims of a prisoner suing in forma pauperis may be dismissed if frivolous.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West 2002). And, in deciding that,
the court may consider whether the claim has any arguable basis in law or fact. Id. §
14.003(b)(2).
State Law Claims
Next, sovereign immunity applies to claims asserted against state governmental
entities and its employees sued in their official capacity. McClennan County v. Veasey,
314 S.W.3d 456, 458-59 (Tex. App.–Waco 2010, pet. denied). Such immunity is waived
for non-intentional torts, TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2011),
involving realty or personalty of the State. Id. § 101.021(2). Regarding premises
defects, the governmental unit simply owes the claimant the duty a private person would
owe a licensee. Id. § 101.022(a). Finally, the duty a private person owes a licensee is
to 1) avoid injuring the licensee through willful, wanton or grossly negligent conduct or
2) either warn of or make safe an unreasonable unsafe condition of which the licensee
knows not. Wigfall v. Tex. Dep’t of Crim. Justice, 137 S.W.3d 268, 276 (Tex. App.–
Houston [1st Dist.] 2004, no pet.); accord State v. Williams, 940 S.W.2d 583, 584 (Tex.
1996) (specifying the elements for a premises liability claim asserted by a licensee).
An inmate slipping in a shower stall because of its construction is considered a
premises defect. Wigfall v. Tex. Dep’t of Crim. Justice, 137 S.W.3d at 276. Thus, the
TDCJ had a duty to either warn of or make safe a condition about which Stewart knew
not. Yet, Stewart’s pleadings reveal that he knew of the slippery nature of the shower
floor. His knowing about it precludes him from recovering against TDCJ. See id. at
2
276-77 (upholding the verdict against the inmate due to his knowledge of the condition,
among other things). Simply put, the prison had no common law duty to make the
shower floor reasonably safe so long as Stewart knew of the condition.
As for the allegation about prison personnel confiscating property, that claim
would liken to conversion. And, conversion is an intentional tort. City of Houston v.
Petroleum Traders Corp., 261 S.W.3d 350, 361 (Tex. App.–Houston [14th Dist.] 2008,
no pet.). Thus, it cannot be asserted given the bar of sovereign immunity.
As for the wardens being sued in their individual capacities, nothing in the
pleadings suggests that they own the prison facilities or personally confiscated any
property from Stewart. Nor did he allege facts which would render the wardens
vicariously responsible for the confiscation, if any, undertaken by others. Thus, they
would have no liability as individuals.
Federal Claims
We have been cited no authority holding that a slippery shower floor is actionable
under 42 U.S.C. § 1983. Indeed, our research revealed otherwise. Reynolds v. Powell,
370 F.3d 1028, 1031 (10th Cir. 2004) (stating that “slippery floors constitute a daily risk
faced by members of the public at large. Federal courts from other circuits have
therefore consistently held that slippery prison floors do not violate the Eighth
Amendment”); Shaw v. TDCJ-CID, 540 F. Supp. 2d 834, 838 (S.D. Tex 2008) (stating
that “[a]t the most, Shaw's allegations indicate that the prison officials were negligent in
failing to ensure that the showers were not slippery. This is a problem in common to
showers, in and out of prison, and is not actionable as a civil rights claim”).
3
As for the confiscation of his papers, it too fails to give rise to a civil rights claim
in Texas. Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994) (stating that “[i]n
Texas, as in many other states, the tort of conversion fulfills this requirement [i.e., the
provision of an adequate state post-deprivation remedy]. Accordingly, Murphy's claim
based on the confiscation of his property is not actionable under section 1983”).
Instead, Stewart had the ability to sue those who actually took his papers.
In view of the foregoing, Stewart’s claims lack an arguable basis in law. Thus,
we overrule each of Stewart’s issues and affirm the dismissal.
Brian Quinn
Chief Justice
4